When you are involved in a personal injury case, the defendant might pass away. This could even be due to the incident that lead to the personal injury case in the first place. You will still be able to file a successful personal injury claim, but you will need to act much more quickly.
An Example of How the Deceased Can Be At Fault
In cases involving drunk drivers, the driver who is intoxicated crashes their car into yours and then passes away as a result of the accident. Because the driver was under the influence of alcohol at the time of the accident, they will likely be considered at fault for the crash.
How You Can Sue the Deceased
You will be able to sue the deceased through their estate. After the defendant has passed away, their assets will become a part of their estate and will go through probate. These assets will be distributed based on the will of the deceased.
However, you will want to consult with a personal injury attorney who is familiar with the laws in your state. The state law will determine the statute of limitations for filing a claim against a deceased individual's estate. Failing to file a claim will prevent you from filing a lawsuit in the future.
The Executor of the Estate
If the executor knows about your claim, they will need to contact you to inform you about the deadline for filing your claim. If you are not notified in time, you may then have the right to file a late claim. Family members are under no obligations to pay for the debts of the deceased, and they are also protected by the law.
If you have not yet filed the lawsuit, the case may proceed in court just as if the deceased were still alive. The administrator or executor of the deceased will answer and defend against the lawsuit. The courts will often not know who the executor is, so your personal injury attorney will need to investigate this and then inform the judge.
To determine who the executor is, the attorney will need to search all of the possible probate courts. If there is no probate pending, your attorney will need to search all of the possible heirs and will then file a scire facias substitution. Because the process is very complicated, you will not want to pursue it without the help of an experienced attorney.